Premises Liability

Pennsylvania Construction Workers Injured When Trench Collapses on Them

June 5, 2014 | Lebowitz & Mzhen

Just a few weeks ago in May, two construction workers were trapped in a trench when the trench collapses around 1 p.m. in the afternoon. According to a report by the Times Herald, the men were working on a project at the Valley Forge Sewer Authority when the dirt wall of the trench just gave way, trapping the two men under a pile of dirt.

After emergency responders pulled both men from the trench, they noticed that the men had both been injured in the collapse. They were each taken to local hospitals; one man was suffering breathing problems, and the other from injuries to his leg.

One trench worker told reporters that there had been other collapses since he had been assigned to work on the trench a few months ago. At the time the article was published, the Occupational Safety and Health Administration was on the way to determine if the workplace was indeed safe at the time of the accident and to conduct an investigation into the cause of the accident.

Fatal Accident During Film Shoot Brings Likelihood of Lawsuit

March 18, 2014 | Lebowitz & Mzhen

The death of a camera assistant during a film shoot in Georgia has raised questions about film crew safety, amid allegations that the filmmakers placed a higher priority on completing the film on schedule and under budget. The woman’s family is expected to file a lawsuit in connection with her death, but many important details of the case remain unknown. Prior court cases involving film shoot injuries or deaths have involved employment-related questions, such as whether an injured person was an employee of a filmmaker, as a key part of determining liability.

The decedent, Sarah Jones, was second assistant camera on a low-budget independent film entitled Midnight Rider. On February 20, 2014, she and others were setting up to shoot a dream sequence, which involved placing a bed frame and mattress in the middle of the tracks on a bridge trestle spanning the Altamaha River outside of Doctortown, Georgia. Crew members were warned that, in the event a train approached, they would have sixty seconds to get out of its way.

When a train did appear, Jones, a hairstylist, and the director were still on the trestle. The hairstylist told the Hollywood Reporter that their only way off involved running towards the train. She ran for a gangplank, but the train struck her left arm before she made it there. She survived, but suffered a major fracture. Another crew member managed to pull the director to safety. Jones, however, did not make it to the gangplank, and was killed by the train.

Court Approves Settlement in BP Oil Spill Class Action Lawsuit

February 13, 2014 | Lebowitz & Mzhen

A federal appellate court approved class certification and a settlement in a class action lawsuit based on the 2010 explosion and oil spill on an oil drilling rig operated by British Petroleum (BP) in the Gulf of Mexico. In re Deepwater Horizon, et al, No. 13-30095, slip op. (5th Cir., Jan. 10, 2014). The spill led to several hundred lawsuits by individuals and businesses claiming property damage, and by individuals claiming personal injury. The recent ruling rejected a request by BP to vacate the district court order approving the settlement. While this ruling specifically involves claims for property damage, BP’s claims and the court’s ruling could also apply to personal injury class actions.

BP operated, Deepwater Horizon, an exploratory oil drilling rig in the Gulf of Mexico, about forty miles south of Louisiana. The rig was drilling a well located at a depth of about 5,100 feet underwater. On April 20, 2010, a pocket of methane gas rose into the rig, ignited, and caused an explosion that killed eleven workers and injured over a dozen. Oil flowed from the well directly into the Gulf for almost three months releasing an estimated 205 to 210 million gallons. Oil washed ashore in Texas, Louisiana, Mississippi, Alabama, and Florida, resulting in widespread reports of injured and dead wildlife, property damage, and health problems among residents of the affected areas.

BP was named as a defendant in hundreds of lawsuits. The Judicial Panel on Multidistrict Litigation (JPML) consolidated many of the claims in In re Oil Spill by the Oil Rig “Deepwater Horizon,” No. 2:10-md-02179 (E.D. La.), in August 2010 in order to address common issues as efficiently as possible. BP established a fund to pay claims known as the Gulf Coast Claims Facility (GCCF), which would eventually pay out over $6 billion. Starting in 2011, the company negotiated with the plaintiffs in the JPML case to transfer claims from the GCCF to a court-supervised fund.

Corporate Elevator Responsible for Causing Injury Presents Precarious Issue for Determining Liability

December 26, 2013 | Lebowitz & Mzhen

A case where an individual was harmed as a result of an elevator unexpectedly falling several floors afforded a Virginia federal district court the opportunity to examine the concept of res ipsa loquitur, and whether it applied to the plaintiff’s personal injury claim against two corporate defendants.

In the case, McGriff v. GRAMERCY CAPITAL CORP., Dist. Ct., ED Va. (2013), the plaintiff boarded the elevator on the twelfth floor of a corporate building, intending to travel up one floor. However, once the plaintiff boarded the elevator, it suddenly and violently fell several floors, causing significant injury to the plaintiff.

The building is owned by one of the defendants, which is in turn owned by the other defendant named in the lawsuit. The defendants leased a portion of the building to a third party, not named in this suit, who contracted with a separate company, which contracted with yet another company for the maintenance of the elevator.

The Reality of Cruise Line Lawsuits

June 28, 2013 | Lebowitz & Mzhen

Following the several recently publicized cases of cruise ships encountering trouble while at sea, there has been widespread speculation regarding passengers filing lawsuits.

The Carnival Triumph, for example spent several days stranded at sea without any air conditioning, functioning toilets, or hot food. Therefore, several of the Triumph’s passengers have begun to consider their legal options.

In response to the incident, Carnival offered the Triumph passengers a full refund, credit towards a future cruise, reimbursement for specific on board expenses, and an additional payment of $500 per passenger.

While many passengers found the offer to be insulting, considering the conditions that they had to endure, unfortunately due to the relevant laws they may not be entitled to much, if anything, more than what they have already been offered.

The primary obstacle in cruiseship lawsuits is the incredibly limiting terms on the cruise tickets themselves, which form a legally binding contract. Many individuals on vacation do not realize that the ticket in their hand is also densely packed with disfavorable contract terms, and may unknowingly waive many of their rights.

Generally speaking, cruise ship lawsuits are governed by maritime law. This means that cruiseliners may not be held liable for damages related to emotional distress or mental suffering, unless caused by the cruise line’s negligence, and resulting in an actual physical injury. A simplified example of emotional distress leading to physical injury might be if an individual begins vomiting uncontrollably, or has some other directly related physical affliction.

Furthermore, like any other binding corporate contract, sometimes referred to as an adhesion contract (i.e., take it or leave it, in nature), there is a venue selection clause. In the case of the Carnival tickets, all lawsuits must be filed within the federal court located in Miami, Florida. Therefore, individuals wishing to sue would have to hire Florida attorneys, and may face costs flying to the venue for relevant court proceedings, such as depositions. Additionally, cruise ship tickets are reportedly infamous for including class action waivers within their terms, creating further difficulty for passengers wishing to band together.

Slip and Fall Accident Against Walmart Receives $11 million Verdict

June 7, 2013 | Lebowitz & Mzhen

Walmart is one of the most well known companies in America today. In fact, it has consistently been ranked at the top of the Fortune 500 rankings, and last month was awarded the #1 spot, with $444 billion in revenue in 2012.

Thousands of civil lawsuits are filed every year against Walmart for various reasons. For example, earlier this year in Virginia, one Walmart customer reportedly won a verdict against Walmart for $11,250,000.00 following a slip and fall accident that left him severely disabled, and permanently in pain. The man’s injuries included numerous fractured bones in his back, his elbow, and his hand, and a rotator cuff injury. The reason for the unmarked wet floor was allegedly because an employee had left the area after mopping it in order to retrieve a warning cone.

The purpose of the seemingly large dollar amounts in cases like this one are several fold. First of all, the award sets out to cover all of the previously incurred medical expenses, and cover all those medical and related therapies and costs that may be incurred in the future. Further, it attempts to compensate the individual for the pain and suffering that they have suffered. It is also common for awards to compensate the individual for any previously lost wages, and if the person is unable to work, what they might have been able to earn. Lastly, punitive damages, which seek to punish the defendant for the wrongful conduct, are also sometimes a part of personal injury damage awards.

Federal Tort Claims Act Requires a Clear Allegation Against a Federal Employee or Agency, DC Court Rules: Moorman v. United States

November 16, 2012 | Lebowitz & Mzhen

A U.S. District Court in Washington DC dismissed a lawsuit brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq., against the federal government and other government entities. The plaintiff in Moorman v. United States asserted causes of action for premises liability, but did not specifically plead facts to show how the federal government, or a federal employee, was liable for her injuries. The court found that the FTCA did not apply in the absence of any allegations to demonstrate the federal government’s liability, and that as a result, it lacked subject matter jurisdiction over the entire case.

The plaintiff, Jacqueline Moorman, attended an event at the D.C. National Guard Armory in March 2009. When she left the event at approximately noon, she descended an exterior stairway. A concrete step crumbled under her feet, causing her to fall and sustain substantial injuries.

Moorman sued the Washington Convention and Sports Authority (WCSA), a government board that owns the Armory. She also named the United States and the District of Columbia as defendants. According to the district court’s opinion, her allegations of premises liability centered on the WCSA, which is part of the city government of Washington, DC. The mayor appoints most of the members of WCSA’s Board of Directors, who must also be confirmed by the Washington City Council. The federal government reportedly has no direct role in the WCSA or the operation of the Armory.

Sewing Needles Found in Sandwiches in Airplane Meals, One Passenger Injured

July 19, 2012 | Lebowitz & Mzhen

A bizarre discovery in several airplane meals has left one person injured and launched a two-country investigation. Passengers on several Delta Airlines flights found sewing needles in sandwiches included with the in-flight meals. The flights all originated in Amsterdam and were bound for the United States. Police in both the U.S. and the Netherlands are investigating the matter, as is Delta Airlines. All investigators are reportedly looking at the catering company that provided the meals.

Multiple Delta flights leave Amsterdam’s Schipol Airport for the U.S. every day. On July 15, 2012, it had seventeen such flights, and at least four of them had unpleasant surprises in the in-flight meals. On a flight bound for Minneapolis, a passenger bit into a hot turkey sandwich and reported feeling a “sudden jab” in the roof of his mouth. He said he thought it was a toothpick holding the sandwich together at first, but when he pulled it out of his mouth, he saw it was a one-inch long needle with sharp points on each end. A passenger and an air marshal on two different flights to Atlanta found needles. A needle turned up in a sandwich that had not been served to anyone on a flight to Seattle. The man on the Minneapolis flight, who declined medical treatment, appears to be the only injury.

Supreme Court Rules for Baseball Player in Sports Injury Case on Issue of Litigation Costs

June 28, 2012 | Lebowitz & Mzhen

A professional baseball player, Kouichi Taniguchi, brought an unusual claim to the U.S. Supreme Court. Taniguchi sued a hotel over an injury he sustained falling through a deck. The hotel won the case, and obtained a judgment against Taniguchi for “interpretation costs,” per a provision in federal law. Taniguchi fought this all the way to the Supreme Court, which ruled in his favor in May. The case demonstrates the complex nature of expenses in litigation, and how far some parties will go to get a non-prevailing party to pay, or how far a party will go not to have to pay. The amount in dispute was just over $5,000, which makes the case even more remarkable when one considers the cost of taking a case to trial, let alone to the Supreme Court.

Taniguchi is a professional baseball player from Japan. He reportedly played for Tokyo’s Yomiuri Giants, but left after only seven games due to an injured shoulder. He also played minor league ball in the United States for a time. In November 2006, he visited the Marianas Resort and Spa in Saipan. Saipan is an island in the Northern Marianas Islands, an unincorporated, organized territory of the United States in the Pacific Ocean. During a tour of the hotel, Taniguchi fell through a deck, sustaining injuries.

BP Settles Lawsuit Related to 2010 Oil Platform Explosion

March 15, 2012 | Lebowitz & Mzhen

BP, Transocean, and several other companies have settled lawsuits with some of the individuals injured in the April 2010 explosion in the Gulf of Mexico that killed eleven people and caused one of the worst oil spills in history. The companies have also settled some of the claims pending between the various businesses involved with the drilling operation. Still, the situation is a mess of competing claims and lawsuits that may take years to unravel, as injured plaintiffs seek to separate their claims from several thousand consolidated claims for damages.

The Deepwater Horizon drilling rig, owned by Transocean and operated by BP, was a deep water rig positioned in the Gulf about 48 miles south of the Louisiana coast. It had drilled the deepest oil well in history, at more than 35,000 feet, in late 2009, and at the time of the explosion was drilling in an area called Mississippi Canyon Block 252. The explosion occurred on April 20, 2010, when a blowout, typically the result of a failure in pressure control systems, killed eleven workers on the rig and created a fireball visible for miles. The rig sank, while the well, located over 4,000 feet underwater, continued gushing and caused the massive oil spill.

A crew of 126 people was on the rig at the time, including a visiting group of Transocean and BP executives. Nearly all the survivors suffered injury. The person with the worst injuries, according to Bloomberg, is Buddy Trahan, a Transocean executive who suffered twelve broken bones when the explosion threw him thirty feet through a wall and buried him under rubble. A crew member freed him from the wreckage and found that a door hinge had nearly pierced his carotid artery. Trahan and numerous other individuals sued BP and other companies for negligence. Businesses and individuals affected by the explosion, including fishermen and tour companies, also have claims pending. State and federal governments have claims against various companies for damages and regulatory infractions.

The injury and wrongful death lawsuits have been delayed by disputes between BP, Transocean, and other companies over liability for the explosion itself and various property damage claims. Transocean recovered for the total loss of the rig, but other companies lost equipment as well. BP has made claims against manufacturers whose equipment may have caused or contributed to the explosion. The court consolidated several thousand claims for property damages and other economic injuries with the personal injury claims in order to facilitate pretrial processes. Around twelve personal injury claims are still pending.

One worker injured in the explosion, Oleander Benton, settled her federal lawsuit against BP, Transocean, and others. Benton asked a U.S. district judge in New Orleans to dismiss the suit in February. She had sought $5.5 million in compensation for her injuries, but the exact details of the settlement have not been disclosed.